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The record supports the following facts. On January 12, 1994, the defendant pleaded
guilty to two counts of aggravated felonious sexual assault, see RSA 632-A:2
(1996), and was sentenced to two concurrent terms of four to eight years in the New
Hampshire State Prison. The trial court ordered that "[a]ll of the minimum sentence
may be suspended by the Court on application of the defendant provided he demonstrates
successful completion of a sexual offender program while incarcerated."

After the defendant successfully completed sex offender counseling, the trial court
suspended the remainder of his minimum sentence "on the condition that, in the event
of parole, the defendant not reside in the victim's neighborhood." The defendant was
paroled on September 23, 1996. In September 1998, his parole was revoked after he violated
the terms of his community sexual offender treatment contract. Subsequently, the State
moved to impose the defendant's suspended sentence.

At the hearing to impose the suspended sentence, the State argued that, while the trial
court's order listed only one express condition, which the defendant did not violate, the
suspended sentence was also subject to an implied condition of good behavior. On December
9, 1998, the trial court revoked the defendant's suspended sentence and imposed the
balance of the minimum term of that sentence. This appeal followed.

On appeal, the defendant argues that the trial court erred in revoking his suspended
sentence because he did not violate the express condition set forth in the sentencing
order. He further contends that implicit sentencing conditions, such as good behavior, are
not in accord with prior decisions of this court and that due process mandates that
sentencing orders be clear and unambiguous. Finally, the defendant asserts that even if
there is an implied sentencing condition of good behavior, he did not violate the
condition because "good behavior" is defined as conduct conforming to the law
and, here, there was no claim that the defendant violated the law.

We address the defendant's State constitutional claims first, referencing federal case
law only as an analytical aid. SeeState v. Ball, 124 N.H. 226, 232 (1983).
Because the Federal Constitution provides no greater protection than our State
Constitution, we will not conduct a separate federal analysis. SeeKnowles v.
Warden, N.H. State Prison, 140 N.H. 387, 389 (1995).

At the conclusion of the sentencing proceeding, a defendant and the society which
brought him to court must know in plain and certain terms what punishment has been exacted
by the court as well as the extent to which the court retained discretion to impose
punishment at a later date and under what conditions the sentence may be modified.

In accordance with due process, "[t]he sentencing order must clearly communicate
to the defendant the exact nature of [the] sentence." State v. Burgess, 141
N.H. 51, 52 (1996) (quotation omitted). We have recognized "that termination of
freedom by revocation of a suspended sentence involves constitutional liberty
interests" protected by the Due Process Clause. Brennan v. Cunningham, 126
N.H. 600, 604 (1985). Our inquiry therefore focuses on whether an implied condition of
good behavior is constitutionally permissible under due process, and if so, whether the
defendant violated that condition.

The State's argument relies upon earlier cases that appear to recognize an implied
condition of good behavior in suspended sentences. SeeCouture v. Brown, 82
N.H. 459, 461 (1926); Stone v. Shea, 113 N.H. 174, 176 (1973). The defendant,
however, relying upon State v. Ingerson, 130 N.H. 112 (1987), and other cases
decided since Stapleford, argues that Couture and Stone are not
controlling because we have subsequently expressed disapproval of implicit sentencing
conditions.

At first glance, it would appear that any implied condition would violate due process
since "an essential component of due process [is] that individuals be given fair
warning of those acts which may lead to a loss of liberty." Grajczyk v. S.D. Bd.
of Pardons, 603 N.W.2d 508, 512 (S.D. 1999). As the State correctly points out,
however, "the overwhelming weight of authority is that a fundamental condition of any
suspended sentence or probation, whether expressly stated or not, is that the defendant
shall not violate the law." State v. Holter, 340 N.W.2d 691, 693 (S.D. 1983); seealso, e.g., United States v. Dane, 570 F.2d 840, 843-44 (9th Cir.
1977), cert. denied, 436 U.S. 959 (1978); United States v. Cardenas-Yanez,
741 F. Supp. 212, 214 (S.D. Fla. 1990); State v. Hancock, 727 P.2d 1263, 1266
(Idaho App. 1986); Wilcox v. State, 395 So. 2d 1054, 1056 (Ala. 1981); Brooks v.
State, 484 P.2d 1333, 1334 (Okl. Crim. App. 1971).

It would be illogical and unreasonable to conclude that a defendant, who has been
granted conditional liberty, needs to be given an express warning that if he commits a
crime, he will lose the privilege of that liberty. "[A] condition of a suspended
sentence that a person may not commit a [crime], is so basic and fundamental that any
reasonable person would be aware of such condition." Brooks, 484 P.2d at 1334.
Accordingly, we hold that there is an implied condition of good behavior in suspended
sentences and that this condition does not offend due process.

When the deprivation of the defendant's conditional liberty rests upon the commission
of a non-criminal act, however, he must be given some form of warning in order to ensure
that he understands, "in plain and certain terms," the conditions of his
sentence. Stapleford, 122 N.H. at 1087. "[D]ue process mandates [that he be
given] actual notice" that such conduct could result in the revocation of his
conditional liberty. Mace v. Amestoy, 765 F. Supp. 847, 849 (D. Vt. 1991) (citation
omitted); seealsoUnited States v. Gallo, 20 F.3d 7, 12 (1st Cir.
1994). To hold otherwise would effectively modify the terms of the original sentencing
order and result in fundamental unfairness. SeeState v. Rau, 129 N.H. 126,
129 (1987).

We conclude, therefore, as do a majority of other jurisdictions, that the term
"good behavior" is defined as conduct conforming to the law. It does not include
non-criminal behavior for which the defendant must be given actual notice. SeeHorsey
v. State, 468 A.2d 684, 687 (Md. App. 1983); State v. Columbo, 366 A.2d 852,
854 (Me. 1976); State v. Miller, 221 S.E.2d 520, 521 (N.C. App. 1976); 21A Am. Jur.
2d Criminal Law § 897 (1998); Annotation, What Constitutes "Good
Behavior" Within Statute or Judicial Order Expressly Conditioning Suspension of
Sentence Thereon, 58 A.L.R.3d 1156, 1162 (1974).

We also conclude that the trial court erred in revoking the defendant's suspended
sentence. The defendant violated a condition of parole. Specifically, he violated the
terms of his community sexual offender treatment contract. The order suspending the
defendant's sentence, however, had one expressed condition, that he not reside in the
victim's neighborhood. There is no allegation that the defendant violated this condition,
or that his conduct otherwise constituted a violation of the law.

The State argues that under the circumstances of this case, an expressed condition was
not necessary because the defendant had sufficient notice that his conduct could lead to a
revocation of his suspended sentence. We disagree. It would be unreasonable to expect the
defendant to understand that a violation of his parole conditions, which were not
promulgated until after the trial court suspended his sentence, could also result in the
imposition of his suspended sentence. To accept this argument would undermine the strength
of our Due Process Clause, which is designed to protect against precisely such lack of
notice.

The State is not rendered powerless to protect society from a defendant's future
misconduct. The State is free to request at the time of sentencing that certain conditions
be attached to a suspension of that sentence, and the court may tailor those conditions to
prevent re-offending and to further rehabilitation. While we realize that it may be
difficult to enumerate all foreseeable non-criminal conduct which may trigger the
imposition of a suspended sentence, the defendant's due process rights require the trial
court to undertake that effort.